Baghel Singh vs Mohinder Singh

S.S. Sudhalkar, J.

Respondent No. 1 was arrested in connection with F.I.R. No. 74 dated 10.11.1996 under Sections 302/307/34 of the Indian Penal Code and 25/54/59 of the Arms Act, Police Station Boha, District Mansa.

As per the F.I.R., respondent No. 1 and his brother Sadhu Singh armed with 12 bore gun were standing outside a shop when Sadhu Singh raised Lalkara exhorting respondent No. 1 to teach a lesson to Sukhdev Singh and Albel Singh for taking illegal possession of `Shamlat land'' belonging to Panchayat. Respondent No. 1 took out his licensed pistol from his pants and fired at Sukhdev Singh which hit on his chest and he fell down. Another shot hit on the back of Sukhdev Singh who died at the spot. It is further contended that when Albel Singh raised noise in order to save his brother, respondent No. 1 fired 34 shots at Albel Singh and one shot hit him in his stomach while two fire shots hit him on his left thigh.

Respondent No. 1 filed bail application in the court of Additional Sessions Judge for the grant of bail but the same was declined. Then he filed bail application in this court bearing No. Criminal Misc. 13601M of 1997 which was allowed vide order dated 24.7.1997 (copy at Annexure P/4). In the said order, it has been observed that respondent No. 1 has tried to make out a case for having self defence and it is also considered that respondent No. 1 had also received injuries. It is also observed that two wounds were found on the deceased, one wound of entry and the other of exit (there were no different wounds of different fire shots). It is also observed that from the place of occurrence police recovered a licence of .32 bore pistol, a copy of the driving licence, a turban and spects of respondent No. 1.

This Court also considered that respondent No. 1 was a Sikh person as per the certificate of the Civil Surgeon.

The medicolegal report dated 16.11.1996 pertaining to injuries of respondent No. 1 is as under :

(i) An abrasion 5 cm x 2 cm on the back of posterior aspect of left side of abdomen 3 cm lateral to midline. There was crest formation on the abrasion and the chest was brownish black in colour.

(ii) Faint brownish black contusion 3 cm x 2 cm on the front of neck on the midline transversely placed just below the prominence of thyroid cartilage.

(iii) Patient complained of pain on the occipital region slight tenderness present. Slight swelling is present just above the occipital protuberance.

(iv) Faint brownish black contusion 4 cm x 3 cm on the left scapular region.

The petitioner seeks cancellation of bail granted to respondent No. 1 on the following grounds :

(i) that respondent No. 1 has misused the concession of bail;

(ii) that respondent No. 1 is Sarpanch of Village Boha and is an influential person. Hence, it is stated that the only possible way to check these activities is by withdrawing the concession of bail to respondent No. 1.

(iii) that respondent No. 1 has misled this court by producing a false medical certificate regarding his health and that he is using his influence to win over the witnesses.

(iv) that respondent No. 1 and the petitioner are residing in the same village and that the petitioner and his brother Albel Singh are under surveillance of respondent No. 1 and that each activity of the complainant party is being watched by respondent No. 1 being Sarpanch and that it has virtually become impossible for the members of the complainant to go out of their house for daily chores of life.

Regarding the misuse of concession of bail, the petitioner has relied on the alleged incident of 22.8.1997 for which report No. 15 was registered at Police Station Boha. In the complaint, it is contended that the complainant was grazing his cattle on the BudhladaRatia road when respondent No. 1 came on his Maruti car and threatened him by saying that in case his party deposed against respondent No. 1 in court, he will not be spared. The respondent State has contended in its reply that during the enquiry the DDR recorded at the instance of the petitioner Baghel Singh was found to be false. Respondent No. 1 has also denied any such incident. Moreover, this is the only solitary incident mentioned by the petitioner after the bail was granted by this Court to respondent No. 1.

Learned counsel for the petitioner has argued that the police had no business to close the matter because once a complaint was made to the police it was its duty to refer the matter to the Executive Magistrate. Even in the police proceedings mentioned in Annexure P/5, it is mentioned by the MHC that a case for breach of peace is made out and the copy of the report will be produced before Sukhdev Singh, ASI on his return. Learned counsel for the petitioner hence argued that the police should have placed the matter before the Executive Magistrate and should not have taken any decision suomoto in the matter. To this learned counsel for respondent No. 1 has relied on section 116(6) of the Code of Criminal Procedure and has argued that in normal circumstances even the proceedings for breach of peace are to be completed within a period of six months from the date of commencement and have now after the period of more that 6 months, the question of cancellation of bail does not arise.

I may not at this stage go into the question whether the proceedings for breach of peace should have been initiated or not. However, from the fact that there is only one solitary incident as alleged above, the allegation of respondent No. 1 that this story is got up one just to create the evidence for cancellation of bail, cannot be easily brushed aside. Respondent No. 1 may be Sarpanch but at the same time it cannot be presumed thereby that he is trying to pressurise the petitioner and his witnesses.

Regarding the medical certificate as to the condition of respondent No. 1 the State in reply has stated that the Incharge doctor sent to the jail at Bhatinda upon the medicolegal examination opined that respondent No. 1 is suffering from hypertension and sinus tachycardia. It is further contended that this court, therefore, passed necessary orders for the medicolegal examination of respondent No. 1 from the Civil Hospital, Bathinda and while carrying the orders of this Court, respondent No. 1 was again medicolegally examined in Civil Hospital, Bathinda. There is no reason, therefore, to hold that this certificate is got up one.

The other contention that respondent No. 1 is residing in the same village and the only remedy is to withdraw the concession of bail granted to respondent No. 1 to remove his influence as Sarpanch, cannot be accepted because of the above reasons.

Learned counsel for the petitioner has cited before me the case. The State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961. He has relied on the observations made in para 24 of the judgment. Relevant portion in the said paragraph can be reproduced as below :

"...... The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the courts to be silent spectators to be submission of the judicial process."

The principle is clear. However, it should appear by preponderance of probabilities that the accused is interfering with the course of justice and tampering with witnesses. Because of the reasons mentioned above, the facts of this case do not attract the principle laid down in the said cited judgment.

It may be mentioned here that the grounds on which the bail application should be rejected and the grounds on which the bail already granted can be cancelled have to be seen with the different angle. In case of Dolat Ram and others v. State of Haryana, 1995 SCC (Crl.) 237 which was a case of dowry death, the learned Additional Sessions Judge had granted anticipatory bail to the parents and brother of the husband of the deceased. When the matter was taken up before the High Court, it observed as under :

"Dowry death is a serious matter and cannot be taken so lightly. No positive finding has been recorded by the Additional Sessions Judge in his order to the effect that the respondents and the deceased were living separately. No prima facie case is made out which could justify the grant of anticipatory bail. To my view of thinking, concession of anticipatory bail granted by the Additional Sessions Judge, was totally uncalled for. The order dated 12.11.1993 is, therefore, set aside and the respondents are directed to be taken into custody."

The Supreme Court in the appeal over the said order held that the learned Additional Sessions Judge was not justified in observing "it appears that possibly these accusedappellants have been roped in falsely", at that initial stage, when possibly the investigation was not even completed and no evidence was led at the trial, but at the same time it also held that the High Court also fell in error in cancelling the anticipatory bail granted to the appellants for the reasons, which have been extracted by us above. It is observed by the Supreme Court in that judgment that rejection of bail in non bailable offence and cancellation of bail already granted must be considered and dealt with on different basis and that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. The Supreme Court has enumerated the grounds for cancellation of bail. These are as under :

(i) interference or attempt to interfere with the due course of administration of justice; and (ii) evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner.

It is also observed by the Supreme Court in that judgment that the satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. It is further observed by the Supreme court that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. It is also observed in the above said judgment that the "High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a nonbailable case in the first instance and the cancellation of bail already granted."

In case of Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 , the Supreme Court has again enumerated the ground on which the bail can be cancelled. They are as under :

(i) Where the accused misuses his liberty by indulging in similar criminal activities;

(ii) interferes with the course of investigation;

(iii) attempts to tamper with evidence of witnesses;

(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation;

(v) there is likelihood of his fleeing to another country;

(vi) attempt to make himself scarce by going underground or becoming unavailable to the investigating agency;

(vii) attempts to place himself beyond the reach of his surety."

In both the above stated judgments, the Supreme Court has held that these grounds are illustrative and not exhaustive. It is, therefore, clear that these are not only grounds on which the bail can be cancelled. However, the principle laid down by the Court in Dolat Ram''s case (supra) that the bail once granted should not be cancelled in a mechanical manner, has to be accepted.

In view of the above reasons, I do not find that the petitioner has made out a case for cancellation of bail. This petition is, therefore, dismissed.